Every year, one or two gentlemen call me and with quivering voices they tell me, “I just found out that my child is not mine…what can I do?”
I can’t imagine how heart breaking it is to realize that the relationship with your children’s mother wasn’t true…but to also discovery that your relationship with your own children is not what you thought.
There are two options for the fathers that find out their child is not actually their biological child: 1) say nothing and be the father figure the child needs or 2) sue the mother for the deceit and pain she has caused you and the children.
If a father chooses to remain in a child’s life despite the revelation that he is not the child’s biological parent, that father will have my respect and admiration.
For other fathers, maintaining a relationship with the child and the mother is simply a bridge too far. Furthermore, those betrayed fathers will want a public record of their non-paternity and the child support they paid to be paid back to them.
Before anyone starts suing a mother, it is important to first verify that you are or are not the father legally in Illinois
Determining Legal Paternity In Illinois
If you are married to the mother of a child, you will be presumed the parent of the child.
[A person is the presumed parent of a child if] the person and the mother of the child were in a marriage, civil union, or substantially similar legal relationship and the child is born to the mother within 300 days after the marriage, civil union, or substantially similar legal relationship is terminated” 750 ILCS 46/204(b)
If you later marry the mother after the birth of the child and you are on the child’s birth certificate, you will also be presumed the parent of the child.
“[A person is the presumed parent of a child if] after the child’s birth, the person and the child’s mother have entered into a marriage…and the person is named, with the person’s written consent, as the child’s parent on the child’s birth certificate.” 750 ILCS 46/204
Unmarried men will be presumed to the be parent of a child if they signed a Voluntary Acknowledgement of Paternity or a court determined they were the father.
“The parent-child relationship is established between a man and a child by:
(2) An effective voluntary acknowledgment of paternity by the man under Article 3 of this Act; unless the acknowledgment has been rescinded or successfully challenged;
(3) An adjudication of the man’s parentage;” 750 ILCS 46/201(b)
The adjudication of the man’s parentage is usually when a man admits to the court that he is the father or the woman testifies that she didn’t sleep with any other men 9 months before the birth of the child.
Of course, neither the man nor the woman need rely merely on their own testimony. Either can demand a DNA test before the adjudication of parentage.
“As soon as practicable, a court…shall order or direct the mother, child, and alleged father to submit to deoxyribonucleic acid (DNA) testing to determine inherited characteristics.” 750 ILCS 46/401
A negative DNA test will resolve paternity forever. But, if a man was declared the legal father by the other methods above, he will have to have rebut the paternity.
“An action to declare the non-existence of the parent-child relationship may be brought by the child, the birth mother, or a person presumed to be a parent…After a presumption [of paternity] has been rebutted, parentage of the child by another man or woman may be established in the same action, if he or she has been made a party.” 750 ILCS 46/205(a)
But, a man who is not the biological father of a child only has two years to declare himself not the legal father from the time he should have known he was not the legal father.
“An action to declare the non-existence of the parent-child relationship brought under subsection (a) of this Section shall be barred if brought later than 2 years after the petitioner knew or should have known of the relevant facts.” 750 ILCS 46/205
Declaring one’s self not the father is painful enough…and provides no actual restitution from the mother. To get some kind of payback for the hurt, betrayal…and child support, one must file a petition for fraudulent concealment.
Suing A Mother For Lying About Who The Father Of Her Child Is In Illinois
To sue someone in Illinois you must have a claim. The claim for a mother not properly revealing who is the true father of a child is called “Fraudulent Concealment”
“Fraudulent concealment. If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within 5 years after the person entitled to bring the same discovers that he or she has such cause of action, and not afterwards.” 735 ILCS 5/13-215
“The elements of common law fraud[ulent misrepresentation] are: (1) a false statement of material fact; (2) defendant’s knowledge that the statement was false; (3) defendant’s intent that the statement induce the plaintiff to act; (4) plaintiff’s reliance upon the truth of the statement; and (5) plaintiff’s damages resulting from reliance on the statement.” Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 496 (Ill. 1996)
These elements are the key to a successful fraudulent concealment complaint. Without the elements all properly and completely addressed, your fraudulent concealment complaint will be dismissed. “A successful common law fraud complaint must allege, with specificity and particularity, facts from which fraud is the necessary or probable inference, including what misrepresentations were made, when they were made, who made the misrepresentations and to whom they were made.” Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 496 (Ill. 1996)
Let’s work through the elements for your Petition For Fraudulent Concealment.
- False Statement Of Material Fact: “You are the biological father of this child”
- Defendant’s Knowledge That The Statement Was False: “She slept with someone around the same time…so she didn’t truly know I was the biological father.
- Defendant’s Intent That The Statement Induced The Plaintiff To Act. “She asked me to sign the VAP after she said I was the father.
- Plaintiff’s Reliance Upon The Truth Of The Statement: “I manned up and raise that child thinking it was my own.”
- Plaintiff’s Damages Resulting From Reliance On The Statement. “Now that I know the child is not my own, my heart is broken and I want my child support back!”
While you have to lay out the specific elements, courts will simply agree that it was a fraudulent concealment if the mother lied about even the possibility that the child could not be the man’s biological child.
“If [a woman] was having a sexual relationship with more than one man during the time of conception, but asserted that she was certain that [a particular man] was the father, that assertion constitute[s a] fraudulent misrepresentation” LIPSCOMB EX REL. LIPSCOMB v. Wells, 761 NE 2d 218 – Ill: Appellate Court, 1st Dist., 2nd Div. 2001
“[W]hen a party claims to know a material fact with certainty, yet knows that she does not have that certainty, the assertion constitutes a fraudulent misrepresentation. Thus…when a woman categorically represents to a man that he is the father of her child, it is implicit in her representation that during the period of conception she had only one sexual partner. If the man is actually not the father, that representation is categorically false, and constitutes a fraudulent misrepresentation.” Jordan v. Knafel, 880 NE 2d 1061 – Ill: Appellate Court, 1st Dist., 3rd Div. 2007 (Yes… it is THAT Jordan)
What Can You Expect To Collect From The Woman Who Lied About You Being The Biological Father?
Your Petition for Fraudulent Concealment will likely ask that “the [father] be awarded all relief necessary to make him whole, including but not limited to compensation for all real sustained damages, inclusive of punitive damages, attorneys’ fees and costs to the extent possible under the law”
For real and sustained damages it is the “plaintiff’s burden not only to establish that he sustained damages but also to establish a reasonable basis for computation of those damages. Further, damages may not be awarded on the basis of conjecture or speculation.” Schoeneweis v. Herrin, 443 NE 2d 36 – Ill: Appellate Court, 5th Dist. 1982
Those damages are going to have be from SOMETHING. Probably expenses you personally spent on the child. Most likely, child support.
Punitive damages are damages meant to punish the wrongdoer and set an example. “It has long been established in this State that punitive or exemplary damages may be awarded when torts are committed with fraud, actual malice, deliberate violence or oppression, or when the defendant acts willfully” Consolidated Coal Co. v. Haenni, 146 Ill. 614 – 1893
Punitive damages are tricky for willfully declaring the wrong father. It is clearly wrong to make a man think he is the father of a child and vice versa. But, is it so wrong for a woman to want her child to have a father?
Despite all this moral handwringing, it will all come to naught if the supposed mother has no assets to turn over. Someone who lies about who is really their children’s father will probably not be the world’s greatest saver.
Declaring yourself not the father of a child is a delicate situation. Suing the supposed mother of your child for lying to you about being a father is all out war. If you would like to determine if you should take this next drastic step, contact an experienced Chicago divorce attorney for a free consultation.